Fea v. Shull

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-247-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued October 25, 2007

Before Judges Parker, R. B. Coleman and Lyons.

Defendant Cynthia Shull appeals a judgment entered against her following a jury verdict finding plaintiff Alice Fea had suffered a permanent injury pursuant to N.J.S.A. 39:6A-8 and awarding damages of $190,000. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On April 1, 2003, plaintiff was driving towards Shop-Rite in Flemington on Route 31 when she was hit from behind by defendant. Following the accident, neither police nor an ambulance was called to the scene. Plaintiff drove away from the scene and proceeded to Shop-Rite to do her shopping. She did not go to the emergency room. On the night of the accident, plaintiff called her primary care physician but was unable to reach him. She eventually saw the doctor two days later. At that time, she complained of pain and stiffness in her lower back going into her left leg and numbness in her left leg.

Plaintiff's primary care physician referred her to Dr. Patrick Collalto, a board certified orthopedist, for treatment. Dr. Collalto diagnosed plaintiff with a pinched nerve and recommended an MRI. The doctor reviewed the MRI films and testified that the MRI showed a left lateral disc herniation at either L2-3 or L3-4. Dr. Collalto testified that the disc injury is a permanent injury. He referred plaintiff for chiropractic therapy in lieu of physical therapy. In addition, Dr. Collalto suggested plaintiff consider steroid injections as a treatment option. Plaintiff, however, did not avail herself of that treatment option.

In January 2004, plaintiff filed this action along with her husband, who filed a per quod claim seeking damages for personal injuries allegedly suffered by plaintiff arising out of the motor vehicle accident.*fn1 Following the close of discovery in this matter, plaintiff moved for summary judgment on the issue of liability, which was granted. The matter was then tried before a jury on the issue of damages.

Prior to the beginning of trial, plaintiff moved, in limine, to bar several items of evidence from the jury's consideration. She moved to bar any reference by defendant to the circumstances of the accident, such as traffic conditions, speed, severity of impact, and property damage to the respective vehicles. The trial judge held that absent some "opening of the door" by plaintiff's testimony, the circumstances of the accident and impact were not relevant and the evidence would not be permitted.

Following the close of plaintiff's case, defendant moved for a directed verdict on the issue of plaintiff's satisfaction of her burden of proof under N.J.S.A. 39:6A-8. Defendant argued that plaintiff's medical expert, Dr. Collalto, had opined that further medical treatment in the form of a steroid injection could have returned plaintiff to normal function and, therefore, plaintiff failed to establish the injury was permanent as defined by N.J.S.A. 39:6A-8. The trial judge denied the motion, finding that there was sufficient evidence in the record for the jury to infer that the treatment may have provided some reduction in pain, but would not guarantee that the herniation would heal.

The matter was then tried to conclusion. The jury found plaintiff sustained a "permanent injury" within the meaning of N.J.S.A. 39:6A-8 and awarded plaintiff the sum of $190,000 in damages. Defendant filed a motion for judgment notwithstanding the verdict, a new trial, or in the alternative, a remittitur. The court denied the motion in all respects, and this appeal ensued.

On appeal, defendant presents the following arguments for our consideration:

POINT I

A NEW TRIAL SHOULD BE GRANTED DUE TO THE TRIAL COURT'S PROHIBITION OF QUESTIONING AND EVIDENCE CONCERNING THE NATURE AND SEVERITY OF THE ACCIDENT.

POINT II

THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT TO APPELLANT OR JUDGMENT NOTWITHSTANDING THE VERDICT BASED ON THE TESTIMONY OF DR. COLLALTO REGARDING WHETHER AN INJECTION CONSTITUTED FURTHER MEDICAL TREATMENT WHICH COULD RETURN APPELLANT TO FUNCTIONING NORMALLY.

POINT III

A NEW TRIAL SHOULD BE GRANTED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We will address defendant's arguments seriatim. Defendant argues that the trial court erred in excluding references to the circumstances of the accident at issue and any property damage to the vehicles. Plaintiff argues in response that the court did not abuse its discretion in precluding this type of evidence from being presented to the jury.

In light of the New Jersey Supreme Court's recent decision in Brenman v. Demello, 191 N.J. 18 (2007), we agree that it was error not to permit the type of evidence sought to be admitted by defendant in this case. In Brenman, the Court stated that the beginning point of the analysis of the admissibility of any evidence is whether the proffered evidence is relevant. Id. at 30. N.J.R.E. 401 defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." The Court went on in Brenman to note that "[o]nce deemed relevant, the evidence is admissible '[e]xcept as otherwise provided in these rules or by law[. . . .]'" Ibid. (quoting N.J.R.E. 402). Once a court has made that determination, it must initially determine whether the proffered relevant evidence may be excluded pursuant to N.J.R.E. 403. That rule permits relevant evidence to be excluded "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403.

We do not have before us a specific detailed proffer of evidence to be proposed. The in limine motion, though, was based on the earlier decision by us in Brenman v. Demello, 383 N.J. Super. 521 (App. Div. 2006), rev'd, 191 N.J. 18 (2007), in which we held that "a party's use of photographs depicting minimal vehicular damage to suggest just such a causative correlation invites and encourages jury supposition and conjecture, without a basis in the evidence, that the plaintiff's injuries could not have been caused by a relatively minor accident." Brenman, supra, 383 N.J. Super. at 535-36. Our panel was influenced by the Supreme Court of Delaware in Davis v. Maute, 770 A.2d 36 (Del. 2001). In Davis, the Supreme Court of Delaware held "[a]s a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue." Davis, supra, 770 A.2d at 40. The New Jersey Supreme Court rejected that logic. Brenman, supra, 191 N.J. at 35. The Court held that "the fundamental relationship between the force of impact in an automobile accident and the existence or extent of any resulting injuries does not necessarily require 'scientific, technical, or other specialized knowledge' in order to 'assist the trier fact to understand the evidence or to determine a fact in issue [ . . . .]'" Ibid. (quoting N.J.R.E. 702). Therefore, in light of our Supreme Court's decision, we find it was error to exclude evidence that tended to demonstrate a relationship between the force of the impact and the resultant injury. Such evidence may be admitted, provided the court reviews it to determine that it is relevant, an appropriate foundation exists, and that it is not excluded by N.J.R.E. 403.

Defendant also argues that the trial court should have granted a directed verdict or a judgment notwithstanding the verdict based on the testimony of Dr. Collalto regarding whether an injection could have returned plaintiff to functioning normally. Defendant argues that N.J.S.A. 39:6A-8(a) requires plaintiff to demonstrate that she suffered a "permanent injury." Defendant points out that N.J.S.A. 39:6A-8(a) provides that "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment."

N.J.S.A. 39:6A-8(a). Defendant argues the trial testimony of Dr. Collalto did not support a finding of permanency. During the course of the doctor's direct testimony, he mentioned that he spoke to plaintiff about providing her with a steroid injection as a possible treatment option. The doctor commented that steroid injections work pretty well, and stated, "I mean, they don't always cure people, but at least that's good treatment, good option." The doctor went on to state, "I usually tell [patients] that there's probably about a third of the people get significant relief, and a third of [the] people get some relief, and there's probably a third of [the] people [that] get very minimal, if any, relief."

On cross-examination, the doctor was also asked about these injections. He was asked specifically by defense counsel whether he felt that steroid injections "would have a probability of healing her condition to function so that she could function more normally[.]" The doctor responded that "it's impossible to tell until you do it." Defense counsel asked, "To a medical probability[,] would [steroid injections] have been a medical treatment which could have allowed her to return to functioning normally following her injuries?" The doctor responded, "Could have, yes." Based on this testimony, the defense argues that a directed verdict was warranted because plaintiff did not have a permanent injury in light of the doctor stating that it was possible she could have been healed with this medical treatment.

We note, though, that during the doctor's direct testimony, he was asked, "would the disc herniation be considered a permanent injury?" He responded, "Yes, I think once you damage the disc[,] it's permanent." He went on to say, "I think you can consider the fact that it's not going to go back to the way it was and that she could get recurring symptoms at any time."

We agree with the analysis of the trial judge that the testimony of the doctor may, when viewed most favorably to defendant, be equivocal on the issue of permanency. However, in reviewing a motion for a directed verdict or for judgment notwithstanding the verdict, "the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be reduced therefrom." Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2008). The record is clear that the doctor did testify that the herniated disc would not heal and was permanent. The doctor's statements concerning the benefits of steroid injections could have been interpreted as implying simply that they reduce the pain associated with a herniation as opposed to repairing it. Giving plaintiff the benefit of all legitimate inferences, it was appropriate for the court to deny the motions. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

Defendant also argues that a new trial should be granted as the verdict was against the weight of the evidence. In reviewing the trial court's decision on such a motion, we will not reverse unless it "clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Given the fact, though, that we have concluded that there was error with respect to the in limine evidence motion and a new trial is warranted, we need not address this issue.

Accordingly, the judgment entered herein is reversed and the matter is remanded for a new trial in light of Brenman.

Reversed and remanded.

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